FEDERAL CIRCUIT COURT OF AUSTRALIA
Salvos Legal 2015 Lecture Series
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Interim decision making in the Family Law Courts:
jurisprudential and practical challenges
Dr Tom Altobelli
Judge, Federal Circuit Court of Australia
FEDERAL CIRCUIT COURT OF AUSTRALIA
Alternative title
 ..the incoherent rant of a jaded trial judge
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M*A*S*H
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Meatball surgery
 Meatball Surgery is the term used to describe the type of
surgery performed by the doctors at the MASH units.
The emphasis was on performing an adequate job at
high speed as opposed to refinement and
meticulousness. Writing to his father in the pilot episode
of the M*A*S*H TV series, Hawkeye describes the
process thus: "At this particular mobile army hospital,
we're not concerned with the ultimate reconstruction of
the patient. We only care about getting the kid out of
here alive enough for someone else to put on the fine
touches. We work fast and we're not dainty, because a
lot of these kids who can stand two hours on the table
just can't stand one second more. We try to play par
surgery on this course. Par is a live patient."
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Meatball surgery in the family law courts
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Interesting parallels
 Emergency medicine-a speciality involving
care for undifferentiated unscheduled
patients with acute illness or injury requiring
immediate attention.
 Emergency law?
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Interim decision making
 Ruminations as an academic
 “Recent Developments in Interim Residence
Applications: Back to the Future?” (2000) 14
Australian Journal of Family Law 1
 Cowling (1998) FLC 92-801 and its
predecessor Cilento (1980) 6 FLC 90-847
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Models of Judging
 Formalist-apply law to facts logically,
mechanically, deliberately
 Realist-an intuitive process, followed by later
deliberative rationalisations
 Realistic formalism-intuitive decisions
sometimes overridden with deliberation
 Risk assessment and management
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Before Goode & Goode-the Prequel
 Cowling [19]-[25]
 Best interests
 Ensuring and promoting stability
 Continue well settled environment
 Consider how that environment came about
 If well settled living environment, only limited
evaluation of s68F factors needed
 Also consider other factors
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Goode & Goode: the Prequel
 Cowling bound by a Part VII that did not
include s61DA or 60CC (2), (2A) or (3)
 Significance of decision?
 Endorses Cilento
 Focusses on status quo of child
 Probably elevates 1 factor above all others
 Probably inconsistent with the FLA at time
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Goode & Goode: the Prequel
 J v W (1999) FLC 92-858 and MB v AR
(1999) FLC 92-861
 “… the preservation of the status quo is
appropriate unless there are strong or
overriding indications relevant to the child’s
welfare to the contrary” (at [49]).
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Goode & Goode: the Prequel
 Family law jurisprudence evolves well
beyond ambit of legislation ( a frolic...)
 MRR v GRR [2010] HCA 4 (3 March 2010)
clearly emphasises the words of the statute,
e.g. at [13] and [15]. Stanford v Stanford
[2012] HCA 52 (15 November 2012) does
the same thing.
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Goode & Goode: the Main Event
 [4] His Honour referred to the decision of Cowling
..and appears to have come to his decision as a
result of application of the principles in Cowling…
found that there were arrangements between the
parties that had been in place since June which had
worked for the benefit of the children and that there
was nothing in the evidence that he could find which
suggested that the arrangements were not serving
the needs of the children to have both parents
involved in their lives. His Honour did not consider
specifically the matters in s 60CC of the Act
FEDERAL CIRCUIT COURT OF AUSTRALIA
Goode & Goode: the Main Event
 Best interests
 Protect children from harm
 Follow legislative pathway
 Scope of enquiry significantly curtailed
 Template for interim hearings
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Goode & Goode: the Main Event
 [68] a Goode fairytale
 Where the Court cannot make findings of
fact it should not be drawn into issues of fact
or matters relating to the merits of the
substantive case where findings are not
possible. The Court also looks to the less
contentious matters....
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Goode & Goode: the Main Event
 Should FLA make a distinction between
interim and final?
 [68] problematic in some cases
 [68] misunderstood and mis-quoted
 Fact-finding at interim hearings
 fact-finding as “labour on the factory floor of
the judicial system” (Ipp J, Problem with factfinding (2006) 80 ALJ 667)
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Fact finding in interim cases?
 Young J “Fact Finding” in (1997) 72 ALJ 21.
 14 general rules about fact-finding
 1 (a) The usual is more likely to be what
occurred than the unusual
 (b) The unlikely sometimes occurs. … if
one eliminates the likely, the unlikely must
be true.
 (c)The unusual does not occur that often.
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Fact finding in interim cases?
 2 (a) A witness whose evidence suffers from
no internal inconsistency is more likely to be
correct than a person whose evidence
cannot be so ranked.
 (b) Be careful that apparent
inconsistencies, especially as to times and
dates, do not assume too great a
prominence
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fact finding in interim cases?
 3 (a) A witness whose evidence is consistent
with the other witnesses is more likely to be
correct.
 (b) Often the witnesses are all in the same
interest, for instance police. Here, if all the
witnesses are telling exactly the same story,
suspect collaboration.
 (c) Witnesses in the situation referred to in
(b) may deliberately vary details to confuse
the adjudicator.
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Fact finding in interim cases?
 4 (a) The witness whose evidence is consistent with
the documents is more likely to be correct.
 (b) Sometimes the rogues have forged the
documents as well!
 5(a)Do not think that you have some innate ability to
spot a fraud or a liar. Try not to judge a case wholly
on observations of demeanour.
 (b) There are some cases where the demeanour
of the witness will provide a clear indication
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Fact finding in interim cases?
 6(a) All observation evidence needs to be examined
in the light of the opportunity to observe …
 (b) Some people are more observant than others.
 7(a)Many witnesses will lie when the matter is vital
or when they think that they can escape detection.
 (b) Be careful in branding a person a liar when he
or she is just confused or has a faulty recollection.
Apply this exception liberally when a person’s,
particularly a professional person’s, reputation is at
stake.
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Fact finding in interim cases?
 8 (a) Do not be misled by advocate’s tricks.
 [In an …]… affidavit … the mere fact that the
witness has said something slightly different in two
affidavits filed a year apart is not that significant.
However, the explanation that the witness gives
may be significant. Beware of the witness who
always blames someone else.
 (b)Sometimes, the answer, even to a trick
question, throws light on reliability.
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Fact finding in interim cases?
 9 (a) Sometimes one unassailable piece of evidence
will reveal where the true facts fall.
 (b) Take care that the unassailable piece of
evidence really is unassailable.
 10(a) Take into account cultural or other
characteristics which operate on the witness. Watch
the forces that are likely to influence the witness in
formulating the evidence.
 (b) Beware that you do not conclude that the mere
fact that the witness would benefit by telling a lie
means that he or she has done so.
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Fact finding in interim cases?
 11(a) Just because a witness says that something is
not so and is shown to be a liar, does not establish
that that something is so.
 (b) The fact of the lie together with other material
may permit such inference to be drawn.
 12(a) Beware of counsel gaining such sympathy for
a party that one begins to see life through that
party’s eyes.
 (b) On the other hand, do not overcompensate.
Conversely, do not let prejudice against the
unlovely, colour assessment of the evidence.
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Fact finding in interim cases?
 13(a) Formal rules such as Browne v Dunn and
Jones v Dunkel may provide the solution.
 (b) Make sure that these rules really do provide a
true guide. If incompetent counsel or solicitors are
appearing, these rules may not lead to truth.
 14(a) One can sometimes infer the truth from the
fact that a witness has not said something or that
counsel has not asked a question.
 (b) This should not be overdone.
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fact finding in interim cases?
 Even in interim hearings the judges closely scrutinise the
evidence for:
 assertions that are more likely to be logical (i.e. usual) than
illogical;
 internal consistencies within the evidence of a witness;
 external consistencies with the evidence of other witnesses;
 partisanship;
 external consistency with other documents which are more
likely to be correct (e.g. business records);
 cultural factors; and
 what is not said when it would be logical to say it.
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Goode & Goode: the Main Event
 [68] Goode see Keita & Maalouf [2014] FCCA 1898
(18 July 2014), particularly at [47] to [58]
 s69ZR Power to make determinations, findings and
orders at any stage of proceedings
 The legislative pathway must be followed, and that
is not possible if every allegation of family violence
is simply rendered nugatory by even the blandest
form of denial, all supposedly justified by the need to
avoid some form of procedural impropriety by not
making findings of fact?
 Inadequate template for risk cases
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Goode & Goode: the Main Event
 Interim/final dissonance
 Neither family violence nor high conflict
necessarily contra-indicate an order for
substantial and significant time at a final
hearing, but both factors probably do at an
interim hearing;
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Goode & Goode: the Main Event
 The Sequel- outcome almost identical
 Orthodoxy (status quo) prevails
 The Final Episode-big quantitative difference
in outcome
 Ephemerality of court orders
 No fairy tale endings
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Interim advocacy
 Time limited
 Robustly issues focussed
 Get court’s attention quickly
 Role reversal
 Case outline critical
 Affidavits-think first (what, where, why…)
 Minute of order
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Meatball surgery
 Time to develop a well considered and
articulated doctrine for emergency law?